Baroness Noakes: My noble friend Lady Blatch has raised some important concerns about Clause 26. I find it a difficult area. In many ways, I find it more finely balanced than my noble friend does. I can see, on the one hand, that there may be circumstances in which a relationship between a child and somebody who later acquires a position of trust is not harmful. It is difficult to see why we should make something unlawful because of a change of circumstance. However, as my noble friend pointed out, people have choices in life and could choose to resign from a position of trust or find some other way of removing themselves from such a position.

My concern is that allowing pre-existing relationships would subtly undermine the basic prohibition created by the abuse of trust provisions. That would send the wrong message. We want the abuse of trust provisions to be strong and effective and to send a strong signal. I hope that the Government will consider the clause again.

Lord Monson: Time and time again, I find myself in agreement with the noble Baroness, Lady Blatch, on a wide variety of subjectsbut not on this occasion, I am afraid.

The point is that the relationships ante-date the assumption of a position of trust by the older person, who may, after all, be only slightly older. The allegedly naive and innocent 16 or 17 year-old could not have been swept off his or her feet at the outset by the

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exalted status of the older party. They would have met on level terms, so to speak. It seems cruel, on principle, for the state to break up an existing relationship for no compelling reason.

Baroness Carnegy of Lour: I listened carefully to what my noble friend Lady Blatch said. It strikes me rather strongly that the effect on a class being taught by the person with the previous relationship would be formidable. Children recognise acutely when sexual relationships exist. I tried to imagine what it would be like to be the parent of a child in a class where that was known to be going on. It would be difficult for that class to operate properly. I am not sure whether my noble friend made that point, but it is a powerful one.

I see the point that the noble Lord, Lord Monson, has just made. It is, of course, unkind to break up a relationship in that way, but, as my noble friend said, that person does not have to teach that class. That is an important point, and the Government should think seriously about it. Educationally speaking, it would not be doing the school a good turn.

The Earl of Listowel: I shall make a brief point on the issue of trust. It must be damaging for a child to have her or his trust abused by an adult. I want to point out the wider context of the issue. As the Minister has often said, we are not here, at the moment, to address those broader issues, but we need to keep them in mind.

We should keep in mind the fact that, often, young people who have had poor experiencesperhaps, they have been abused themselvesfeel attracted to social work. They want to care for others because they identify with other children who have suffered. However, such young people may not have come to terms with their own experience and may be weak and vulnerable. They may go out to help others, without necessarily being fully equipped to do so. The Minister should bear in mind the necessity properly to train and support those working with vulnerable children who trust in them. I am not, in any way, excusing the abuse of trust, but, while we talk about punishment, we must remember our duty to support and train such workers. We must remember how poorly trained and supported staff in children's homes, for instance, have been.

Lord Falconer of Thoroton: This is an important issue, which we must consider extremely carefully. The protection of children is at the heart of the Sexual Offences Bill, and we are, as noble Lords will know, introducing several different offences to protect children from exploitative sexual acts.

The offence of abuse of trust is designed to protect a child from abuse in circumstances in which an adult holds a position of trust or authority in relation to the childfor example, in a residential home, a detention centre or an educational establishment of any sort. The primary motivation for introducing the offence is the need to protect young people aged 16 and 17. If they are under 16, they will be protected by provisions relating to other offences. We are dealing with children who are over the age of consent but are vulnerable to

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having the trust that they repose in somebody manipulated to the advantage of the defendant, with a view to that defendant having a sexual relationship with them.

As the noble Baroness, Lady Blatch, rightly said, the offence introduced in the Sexual Offences (Amendment) Act 2000 includes an exemption for any lawful sexual relationship that existed immediately before the commencement of that Act. The Act has been in place for more than two years, during which time any lawful relationship that pre-existed it will have moved out of the scope of the offence, by virtue of the fact that the younger party must now be over 18.

This Bill provides a similar exception in Clause 27 in relation to the new positions of trust that have been incorporated into the Bill. The noble Baroness, Lady Blatch, has tabled an amendment to strike Clause 27 from the Bill, and for the reasons that I shall explain during our debate on that amendment we agree with her thinking and intend to remove the clause. We are with the noble Baroness on that point. The clause provides that if a relationship is lawful only because it began before the enactment of the Bill and continues after enactment, that should not be a defence.

But in Clause 26 we are considering something elsea relationship between person A and a young person aged between 16 and 17 years which is lawful. The law explicitly does not intend to interfere with such a relationship and so the relationship of trust has not been manipulated in order to sustain that relationship. We must be clear where the line is drawn. I interpose at this stage to stress that it is the relationship that the Act defines as a defence, not a one-night stand, as referred to by the noble Baroness. That would not constitute a relationship. We are considering lawful relationships.

Taking the obvious example, after the relationship has commenced the defendant begins to teach the person aged 16 to 17 years. Plainly that relationship has not been brought about by the relationship of trust; it is a perfectly lawful relationship. We have thought very carefully about this point. We believe that it would be going too far in circumstances where it is plain that iniquity has not occurred; namely, the relationship was not abused, leading to the young person aged between 16 and 17 being victimised. We consider that, overall, the provisions of Clause 26 strike the right balance between keeping interference by the state into the private lives of individuals to a minimum and maintaining maximum protection under the law for children from sexual abuse and exploitation.

The noble Baroness is absolutely right to say that the clause introduces a new position from that taken under the Sexual Offences (Amendment) Act 2000, but I repeat that we believe that we have struck the right balance. I hope that Members of the Committee will take the same view and agree that Clause 26 should stand part of the Bill.

An important point was raised by the noble Baroness, Lady Carnegy of Lour. The noble Baroness was right to point out that difficulties would arise in

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the classroom if it was known that the teacher was conducting a sexual relationship with one of the pupils. Let us assume for the purposes of the argument that there was a pre-existing sexual relationship between the teacher and the pupil, one that pre-dated the point at which the pupil came into the school. I respectfully suggest that the correct way to deal with that situation would be for the school to ensure that there was no possibility of the teacher concerned taking lessons with the particular class. The problem is not whether the criminal law should intervene, rather it is a matter of ensuring that the school is properly run by the headteacher.

I agree also with the point made by the noble Earl, Lord Listowel. We need to ensure, as far as possible, that people who are in positions of trust are properly trained and supported.

Noon

Baroness Carnegy of Lour: Before the noble and learned Lord sits down, have the Government ascertained whether the teachers' unions have agreed to what he has stated? If they have not, a school would be put in the extremely difficult position of having to prevent teachers from taking their normal classes because a girlfriend happened to be a pupil in one of those classes.

Lord Falconer of Thoroton: I shall write to the noble Baroness about the consultation that has been undertaken with the teachers' unions. However, I am not sure whether any sensible headteacher would think it appropriate for a teacher and a member of one his classes to conduct a sexual relationship. I find it hard to believe that that would be regarded as an appropriate relationship in the context of a school.

Lord Cameron of Lochbroom: Would the noble and learned Lord describe when a position of trust arises in the circumstances mentioned by the noble Baroness, Lady Blatch? Let us consider a teacher who has just agreed a new contract with a school in which classes have not yet started. He is already a teacher at the school, but that fact is unknown to the particular girl, a pupil at the school, whom he meets in a public house just before the new term begins. In those circumstances, by virtue of his contract, one might argue that he is placed in a position of trust in relation to any person he discovers at any time thereafter to be a pupil at that school.

I should like to be certain that the phrase in Clause 26(1),

"before the position of trust arose",

can be seen as being the start of a contract. I look back to Clause 23(5) which refers to person A looking after,

"persons under 18 who are receiving full-time education at an educational institution and B is receiving full-time education at that institution".

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I hope that the point is one the noble and learned Lord can clarify. It could present difficulties in the courts as regards determining the point at which Clause 26(1) would arise, so that the teacher would not be absolved, as it were, from his sexual relationship with the pupil.